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Lasdon, William S. (Estate of) - Ruling, October 31, 1994

Ruling, October 31, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of a Significant Threat to the Environment at an Inactive Hazardous Waste Disposal Site, Under Article 27, Title 13, of the Environmental Conservation Law of the State of New York (the "ECL") by

ESTATE OF WILLIAM S. LASDON,

Respondent.

Index No. W3-006-8101 (Harriman)

RULING OF THE ADMINISTRATIVE LAW JUDGE

BACKGROUND

This matter was referred to hearing pursuant to a Department order, dated March 1, 1994, by Langdon Marsh, who was then executive deputy commissioner. The hearing will consider whether the Estate of William S. Lasdon ("the Estate") can be held responsible for the disposal of hazardous waste at a site in Harriman, New York. Three issues have been identified for adjudication:

Whether Mr. Lasdon owned part of the site from August 7, 1942 to September 28, 1945;

Whether he was an operator of the site from March 25, 1942, to May 3, 1957; and

Whether hazardous wastes were disposed of at the site from March 25, 1942 to May 3, 1957.

Department Staff has made three separate requests for disclosure. The first, dated September 15, 1994, is a demand for production of documents deemed relevant to the identified issues. The second is a letter, dated September 20, 1994, requesting that the Estate make available for deposition any expert witnesses it has retained for the hearing. The third is a request, contained in an October 12, 1994 letter, for the continuation of a deposition, begun in May 1992, of Edward Alper, a possible witness in this matter.

The Estate opposes all three disclosure requests as unauthorized under the governing regulations (6 NYCRR Subpart 375-2). I agree with the Estate and therefore deny the disclosure requests.

DISCUSSION

This matter is being addressed pursuant to 6 NYCRR Subpart 375-2, which sets forth procedures pertaining to hearings under Environmental Conservation Law ("ECL") Section 27-1313. Designed to provide a "fair and expeditious resolution of matters" raised

during the course of such hearings [6 NYCRR 375-2.1(a)(1)], the regulations basically provide that DEC Staff and the Respondent shall submit pleadings containing their proof to the Commissioner, who will then determine which facts are in controversy and therefore require a hearing to determine. At the hearing the parties are "afforded the opportunity to present their respective evidence with respect to those facts the commissioner finds to be in controversy and to cross-examine witnesses presented at the session. Thereafter, the commissioner will make determinations with respect to the site" [6 NYCRR 375-2.1(a)(2)].

The March 1, 1994 order determined the facts to be adjudicated and referred the matter to me to conduct the hearing. Although the parties initially agreed that the hearing be deferred while the order was appealed, that agreement has expired and there is no apparent stay on further proceedings. In keeping with the regulations' intent that matters be resolved expeditiously, this hearing should not be deferred for discovery unless there is authority and good reason to do so. Both are lacking in this case.

The State Administrative Procedure Act (SAPA) Section 305 provides that "each agency having power to conduct adjudicatory proceedings may adopt rules providing for discovery and depositions to the extent and in the manner appropriate to its proceedings." For proceedings under Subpart 375-2, the only explicit disclosure provision is 6 NYCRR 375-2.1(b)(3). That provision is available only to respondents (and not to DEC Staff) and is limited to the production of documents. Also, it applies only for 30 days after service of the complaint to help a respondent prepare its answer.

Granted, Subpart 375-2 contains no explicit prohibition against other forms of disclosure or disclosure generally on behalf of DEC Staff. However, such prohibitions are implied from the absence of disclosure authorizations like those found in 6 NYCRR Part 622, which is available to Staff as an alternative to Subpart 375-2 for hearings under ECL 27-1313. Part 622 has long provided for discovery as broad in scope as that provided in the Civil Practice Law and Rules (CPLR). The absence of a similar provision in Subpart 375-2 - - coupled with the subpart's stated intent that it provide an "expeditious" resolution of hearing matters - - suggests that it does not afford the same disclosure opportunities as the CPLR.

In support of its disclosure demands, Staff writes that I may be guided by CPLR 3101(a), which provides that "there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action." However, the courts have ruled that where an administrative agency has not adopted as a rule of its own the disclosure devices of CPLR Article 31, those provisions do not apply to its administrative hearings. Nor is the adoption of those provisions compelled by SAPA Section 305 [Heim v. Regan, 90 A.D.2d 656, 456 N.Y.S.2d 257 (3d Dept. 1982)].

While there is no apparent authority for Staff's demand for disclosure of documents, Staff cites another section concerning my authority as administrative law judge to require the production of evidence [6 NYCRR 375-2.1(b)(7)(ii); see also SAPA Section 304(2)]. This authority is based on my power to sign and issue subpoenas. Pursuant to CPLR Section 2302, subpoenas may also be issued by the attorney of record for a party to an administrative proceeding. There is no need for me to issue a subpoena for the documents requested by Staff since, if Staff wants to produce them as proof, it can subpoena them itself for production at the hearing.

Furthermore, deferring the hearing for the depositions requested by Staff would be wasteful even if there was authority to order them. Of the three issues to be adjudicated, only the third (as cited above) would appear to benefit from expert testimony. As noted in the March 1, 1994 order, that issue concerns whether solid wastes that were burned in a pit at the Harriman site were hazardous and, if so, whether any residues were also hazardous. While this issue may involve expert testimony, such testimony can be probed adequately by cross-examination, as intended by the governing regulations, without there also being pre-hearing depositions, with the delay they would engender.

Depositions are an anomaly in Department practice; even under Part 622, they were forbidden until recently, and are now allowed only with the permission of the ALJ upon a finding that they are likely to expedite the proceeding [6 NYCRR 622.7(b)(2)]. Depositions here are not likely to expedite this proceeding - - in fact, they will likely delay it - - and any undue surprise engendered by either party's direct expert testimony can be adequately addressed with a short hearing adjournment prior to cross-examination.

Finally, DEC Staff requests that I compel the Estate to make Mr. Alper available for the conclusion of a deposition that was held on May 5, 1992. That deposition was conducted prior to this matter becoming subject to Subpart 375-2, and as noted above, this subpart does not provide for depositions.

Beyond that, the record of correspondence in this matter indicates that the Estate made Mr. Alper available for the continuation of this deposition on June 17, 1992 (see letter of Estate counsel Joel Sachs dated May 20, 1992), that I ordered the deposition to continue on that date (see letter of ALJ dated June 9, 1992), but that DEC Staff then wrote that "after careful consideration, we have decided that it is not necessary to continue the deposition of Edward Alper at this time. Accordingly, the deposition currently scheduled for June 17, 1992 should be cancelled" (see letter of DEC Staff attorney David Rubinton dated June 15, 1992).

Having previously decided that it was not necessary to continue the Alper deposition, Staff waived the opportunity to continue it now, more than two years later.

SUMMARY RULING

Staff's requests for disclosure are denied in full.

ORDER OF DISPOSITION

As there is no apparent bar to our starting the hearing - - and no agreement between the parties that hearing scheduling be deferred - - counsel for DEC Staff shall promptly arrange with the Estate's counsel and me for a conference call to discuss a fixed set of hearing dates.

Edward Buhrmaster
Administrative Law Judge
Albany, New York
October 31, 1994